[To receive free semimonthly updates by e-mail--approximately the 15th and 30th of each month--please e-mail me at statconzone@yahoo.com.]

SUMMARY OF OPINIONS ISSUED MAY 16-31, 2003

QUOTATION OF THE WEEK:

“It is a curious paradox that judges, whose entire reading is punctuated, should, in carefully punctuated judgments, consider themselves obliged to proclaim that the punctuation in carefully punctuated statutes is no part of the law.”

G.C. THORNTON, LEGISLATIVE DRAFTING (3rd ed. 1987), quoted in RUPERT CROSS, STATUTORY INTERPRETATION 133 (3rd ed. 1995)


CASE SUMMARIES:

Supreme Court

Inyo County v. Paiute-Shoshone Indians (S.Ct. May 19, 2003) (Ginsburg—Stevens concurred in the judgment)

Statutes/regulations construed: 42 U.S.C. § 1983.

Conclusion: In the situation presented, the Native American Tribe did not qualify as a “person” who may sue under section 1983.

Statutory construction tools:
• “Legislative environment”: “As we have recognized in other contexts, qualification of a sovereign as a ‘person’ who may maintain a particular claim for relief depends not ‘upon a bare analysis of the word ‘person,’’ but on the ‘legislative environment’ in which the word appears . . .” (citation omitted).
• Identical words in same act: “Although we generally presume that identical words used in different parts of the same act are intended to have the same meaning, the presumption is not rigid, and the meaning of the same words well may vary to meet the purposes of the law.”


Federal Circuit

Enterprise Rent-A-Car v. Advantage Rent-A-Car (Fed. Cir. May 30, 2003) (Dyk)

Statutes/regulations construed: The Trademark Amendments Act of 1999 and the Federal Trademark Dilution Act of 1995, which provide that the owner of a famous mark can oppose the registration of a diluting mark without establishing likelihood of confusion.

Conclusion: The court concluded that “the owner of a famous mark cannot oppose registration based on dilution where its mark did not achieve fame prior to the applicant’s prior use in a limited geographic area, and that a trademark holder cannot oppose registration based on claims of dilution under state law.”

Statutory construction tools:
• “If Congress had intended . . .”: “Had Congress intended to include a requirement that a defendant’s prior use cover a substantial geographic area in order to defeat an injunction under the Act, it knew how to do so.”
• Include/omit: “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”


First Circuit

Sepulveda v. United States (1st Cir. May 29, 2003) (Selya)

Statutes/regulations construed: The Antiterrorism and Effective Death Penalty Act (AEDPA).

Conclusion: Passage of the AEDPA does not affect the general bar to the retroactive application of newly announced rules of criminal procedure.

Statutory construction tools:
• Context: “[S]tatutory language can only be ascribed meaning if taken in context.”
• Context—Supreme Court precedents: “Part of that context is the presumption that, in the ordinary case, ‘Congress expects its statutes to be read in conformity with [the Supreme] Court's precedents.’”


Third Circuit

Cybergenics Corporation v. Chinery (3d Cir. May 29, 2003) (en banc—Becker wrote majority opinion, Fuentes wrote dissent, and Sloviter, Alito, and Smith joined in the dissent)

Statutes/regulations construed: Bankruptcy Code

Conclusion: Bankruptcy courts can authorize creditors’ committees to sue derivatively to avoid fraudulent transfers for the benefit of the estate.

Statutory construction tools:
• Identical words in same statute: “’Undoubtedly, there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning.’ That presumption may be overcome only when ‘there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.’” (citation omitted)
• Whole law: “As the Supreme Court has often noted, [s]tatutory construction [ ] is a holistic endeavor,’ and this is especially true of the Bankruptcy Code. In United States v. Kelly, a case interpreting § 523, the Court stated that 'we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.'"
• Include/omit: “[T]he Supreme Court presumes “that Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another.”


Dissent: “In this case, the majority interprets the phrase ‘the trustee may,’ in § 544(b)(1) of the Bankruptcy Code, to mean that the trustee and a creditors’ committee may seek recovery under the statute. Although the majority does not conclude that the phrase is ambiguous or that its meaning is in any way obscure, it has, nonetheless, broadened the statute to add a party that Congress specifically omitted. . . . The Bankruptcy Code does not authorize bankruptcy courts to grant derivative standing to creditors’ committees and the Supreme Court has rejected the notion that the federal courts have any policy-making role in construing clear statutory language. If it is a good idea for creditors’ committees to have standing, that is a matter for Congress, not the courts, to decide.”


Fourth Circuit

Cavalier Telephone v. Verizon Virginia (4th Cir. May 20, 2003) (Niemeyer—Greenberg dissented)

Statutes/regulations construed: The Telecommunications Act of 1996 and the Sherman Act.

Conclusion: “[T]the special, indeed idiosyncratic, relationship between the Telecommunications Act and the Sherman Act prevents the Sherman Act from taking on the role of enforcing duties imposed for the first time by the Telecommunications Act . . . even as we conclude that the Telecommunications Act and the Sherman Act impose independently enforceable duties, we do not conclude that every complaint that states violations of §§ 251 and 252 of the Telecommunications Act cannot for that reason alone also state a claim for violations of the Sherman Act. In circumstances where facts state a claim under both statutes construed independently of each other, they may give rise to relief under each act.”

Statutory construction tool: “If Congress did not intend . . .”: “[T]he procedures and remedies used to enforce each law are distinct . . .If Congress did not intend to rely on those procedures independently, it would not have inserted the entirely new scheme of §§ 251 and 252. It would have simply relied on the antitrust laws’ enforcement in federal district courts under the Clayton Act, which authorizes treble damages and attorneys fees to private litigants. See 15 U.S.C. § 15. Instead, in enacting the Telecommunications Act, Congress was imposing new duties precisely focused to break up local monopolies, and its selection of duties, coupled with the remedial procedures of the Telecommunications Act, was to be in addition to duties imposed and remedies afforded by the Sherman Act.”


CALLED, BUT NOT CHOSEN:

Hill v. Republic of Iraq (D.C. Cir. May 16, 2003) (holding that under the Foreign Sovereign Immunities Act, “a plaintiff must prove that the projected consequences are ‘reasonably certain’ (i.e., more likely than not) to occur, and must prove the amount of damages by a ‘reasonable estimate’ consistent with this court’s application of the American rule on damages.”)

Public Service Company of Colorado v. FCC (D.C. Cir. May 16, 2003) (concluding that the FCC’s modifications of the “rates, terms, and conditions” of a pole attachment agreement “were a reasonable exercise of its regulatory authority under the Pole Attachment Act.”)

Amanfi v. Ashcroft (3d Cir. May 16, 2003) (holding that persecution “on account of” membership in a social group, as defined in the Immigration and Naturalization Act, “includes what the persecutor perceives to be the applicant’s membership in a social group”)

Breuer v. Jim’s Concrete (S.Ct. May 19, 2003) (the provision of the Fair Labor Standards Act of 1938 that suit under the Act “may be maintained . . . in any Federal or State court of competent jurisdiction” does not bar removal of a suit from state to federal court)

In re LAN Tamers (1st Cir. May 19, 2003) (reimbursements under the federal "E-Rate" program—which was created by the Telecommunications Act of 1996 to encourage public schools to connect to the internet—were not part of the bankruptcy estate)

Gerosa v. Savasta & Company (2d Cir. May 19, 2003) (concluding that ERISA does not preempt “run-of-the-mill” state-law professional negligence claims against non-fiduciaries)

International Bancorp v. Societe Des Baines De Mer (4th Cir. May 19, 2003) (discussing, at length, in a majority opinion and a dissent, the meaning of the phrase “used in commerce” in the Lanham Act)

In re California Innovations (Fed. Cir. May 22, 2003) (Because of changes in the Lanham Act due to the North American Free Trade Agreement, the Patent and Trademark Office must deny registration under a statutory provision regarding geographically deceptive marks if “(1) the primary significance of the mark is a generally known geographic location, (2) the consuming public is likely to believe the place identified by the mark indicates the origin of the goods bearing the mark, when in fact the goods do not come from that place, and (3) the misrepresentation was a material factor in the consumer’s decision.”)

In re FBI Distribution (1st Cir. May 27, 2003) (in a Chapter 11 bankruptcy case, concluding that Congress was familiar with a particular Supreme Court case construing the relevant statute “and its failure to provide special treatment to garden variety employment contracts indicates that Congress intended that employment contracts be subject to the general principles governing executory contracts outlined in” that case)

In re Werthen (1st Cir. May 27, 2003) (in a case involving the alimony exception to bankruptcy discharge, the court noted that “a more administrable solution” than the “line-drawing approach between alimony and property division” is “long overdue”)

In re Williams (4th Cir. May 27, 2003) (The court concluded that, under the Antiterrorism and Effective Death Penalty Act of 1996, it could extend the 30-day deadline for granting or denying an authorization to file a second or successive application. It also adopted the 7th Circuit’s definition of the statutory term “prima facie showing.”)

Encarnacion v. Barnhart (2d Cir. May 28, 2003) (rejecting the argument that the Social Security Commissioner’s alleged practice of discounting the effects of less than “marked” limitations in appraising whether a child is eligible for Supplemental Security Income Disability benefits is an unreasonable interpretation of the Social Security Disability Benefits Reform Act of 1984, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, and implementing regulations)

Maher Terminals v. Director, Office of Workers’ Compensation Programs (3d Cir. May 29, 2003) (concluding that an employee who “spent half of his time as a checker and his overall duties included assignment as a checker, an indisputably longshoring job” was covered under the Longshore and Harbor Workers Compensation Act “even though he worked as a delivery clerk on the day of his injury”)

United States v. $8,221,877.16 (3d Cir. May 29, 2003) (under federal forfeiture statute, in order to forfeit property that is not directly traceable to the offense, the government must file a complaint within one year of the date of the offense)


LAW REVIEW ARTICLE RECOMMENDATION:

Hon. Maura D. Corrigan & J. Michael Thomas, “Dice Loading” Rules of Statutory Interpretation, 59 N.Y.U. Annual Survey of American Law 231 (2003)

ENGLISH COMMON-LAW TRIVIA QUESTION:
[Name of first person to answer correctly will be posted on this weblog. Please e-mail answers to statconzone@yahoo.com.]

Which common-law writ could be used to keep someone from leaving England?

Congratulations to Ira Matetsky who e-mailed the following correct answer: “ne exeat regno.” (which mean "not to leave the kingdom")

Blackstone discusses the writ of ne exeat regno: "The king indeed, by his royal prerogative, may issue out his writ ne exeat regnum, and prohibit any of his subjects from going into foreign parts without licence. This may be necessary for the public service, and safeguard of the commonwealth."

Blackstone also discusses the consequences for failing to obey such a writ: “And at present every body has, or at least assumes, the liberty of going abroad when he pleases. Yet undoubtedly if the king, by writ of ne exeat regnum, under his great seal or privy seal, thinks proper to prohibit him from so doing; or if the king fends a writ to any man, when abroad, commanding his return; and in either cafe the subject disobeys; it is a high contempt of the king's prerogative, for which the offender's lands shall be seised till he return; and then he is liable to fine and imprisonment."

THE PRE-1789 ENGLISH COMMON LAW IN COURT OPINIONS: In Altman v. City of High Point (4th Cir. May 20, 2003), the court concluded that certain dogs at issue in that case (an animal control officer shot and killed dogs that were running at large in the city) qualified as property protected by the Fourth Amendment. The court began its analysis of the issue by noting that "Three other circuits, the Third, Eighth, and Ninth, have considered whether dogs are protected by the Fourth Amendment. Those circuits have uniformly concluded, although based only on conclusory assertions, that dogs are indeed so protected. The complete absence of reasoning employed by those circuits, however, renders their dispositions of only the most minimal persuasive value."

The 4th Circuit cites Blackstone's Commentaries once--citing a section in his fourth book (the book about criminal law) discussing larceny--"4 William Blackstone, Commentaries *236 (stating that a dog owner possessed 'a base property' in his dogs that was sufficient to 'maintain a civil action for the loss of them')." The court did not discuss other parts of Blackstone's Commentaries that address: property interests in animals in general, and dogs in particular; the responsibilities of the owners of animals, including dogs; and the types of actions that could be based on those interests and those responsibilities.

First, the court did not cite a chapter from the second book (the book about property rights) which discusses “Property In Things Personal.”

That chapter primarily focuses on the different forms of possession as they relate to a number of different kinds of animals. There are two basic categories—tame animals and wild animals. With tame animals, one may have an “absolute” property interest. With wild animals, one may have a qualified property interest. This qualified property interest is of three kinds: due to the industry of the owner (e.g. by capturing wandering animals), due to the inability of the animal (e.g., young hawks that cannot fly yet), and due to privilege. In addition to mentioning dogs (as an example of an animal “only kept for pleasure, curiosity, or whim”), he mentions, among others, horses, sheep, poultry, swine, bees, doves, pheasants, fish, cats, apes, and parrots.

Second, the court did not cite the section of the Commentaries that indicated that dogs are not subject to distress, i.e. "the taking of a personal chattel out of the possession of the wrongdoer into the custody of the party injured, to procure a satisfaction for the wrong committed." Blackstone wrote, in his third book, that "As every thing which is distreined is presumed to be the property of the wrongdoer, it will follow that such things, wherein no man can have an absolute and valuable property (as dogs, cats, rabbets, and all animals ferae naturae) cannot be distreined."

Finally, the court did not cite the section in Blackstone's Commentaries that addresses remedies for shooting someone's dog, and for dogs "used to do mischief":

"As to the damage that may be offered to things personal, while in the possession of the owner, as hunting a man's deer, shooting his dogs, poisoning his cattle, or in any wise taking from the value of any of his chattels, or making them in a worse condition than before, these are injuries too obvious to need explication. I have only therefore to mention the remedies given by the law to redress them, which are in two shapes : by action of trespass vi et armis, where the act is in itself immediately injurious to another's property, and therefore necessarily accompanied with some degree of force ; and by special action on the case, where the act is in itself indifferent, and the injury only consequential, and therefore arising without any breach of the peace. In both of which suits the plaintiff shall recover damages, in proportion to the injury which he proves that his property has sustained. And it is not material whether the damage be done by the defendant himself, or his servants by his direction ; for the action will lie against the master as well as the servent. And, if a man keeps a dog or other brute animal, used to do mischief, as by worrying sheep, or the like, the owner must answer for the consequence, if he knows of such evil habit."

THE PRE-1789 ENGLISH COMMON LAW AND OTHER WEBLOGS: Over at the Volokh Conspiracy, Professor Volokh has an interesting post about whether it's a good idea for the government to give the right "incentives" by threatening to punish jurors (or voters) for decisions that the government finds "wrong."

The idea of punishing jurors who make the "wrong" decision is an old one.

Blackstone discusses two ways of punishing jurors in his Commentaries on the Laws of England

The first way, discussed in his chapter “Of Proceedings, In the Nature of Appeals” was the “WRIT of attaint: which lieth to enquire whether a jury of twelve men gave a false verdict.” The attaint jury had to have 24 members “for the law wills not that the oath of one jury of twelve men should be attainted or set aside by an equal number, nor by less indeed than double the former.” The person bringing the attaint was limited to the evidence that was given to the original jury, because “the law judged it the highest absurdity to produce any subsequent proof upon such trial, and to condemn the prior jurisdiction for not believing evidence which they never knew.”

If this 24-member jury found that the verdict was false, “very terrible was the judgment which the common law inflicted upon them . . The judgment was, 1. That they should lose their liberam legem, and become for ever infamous. 2. That they should forfeit all their goods and chattels. 3. That their lands and tenements should be seised into the king's hands. 4. That their wives and children should be thrown down. 6. That their trees should be rooted up. 7. That their meadows should be ploughed. 8. That their bodies should be cast into gaol. 9. That the party should be restored to all that he lost by reason of the unjust verdict.”

The “severity of this punishment had its usual effect, in preventing the law from being executed,” so by the statute 11 Hen. VII. c. 24. revived by 23 Hen. VIII. c. 3. “a more moderate punishment was inflicted upon attainted jurors; viz. perpetual infamy, and, if the cause of action were above 40 l. value, a forfeiture of 20 l. apiece by the jurors; or, if under 40 l, then 5 l. apiece; to be divided between the king and the party injured.”

However, this was not a common practice in the 18th century. Blackstone writes: “The practice of setting aside verdicts upon motion, and granting new trials, has so superseded the use of both sorts of attains, that I have not observed any instance of an attaint in our books, later than the sixteenth century.”

In the chapter “Of Trial, And Conviction,” Blackstone wrote that a second means of punishing jurors “the practice, heretofore in use, of fining, inprisoning, or otherwise punishing jurors, merely at the discretion of the court, for finding their verdict contrary to the direction of the judge” was “arbitrary, unconstitutional and illegal and is treated as such by sir Thomas Smith, two hundred years ago; who accounted such doings to be very violent, tyrannical, and contrary to the liberty and custom of the realm of England.”


READER COMMENTS:

• "What a tremendous site and one that is long overdue!!"

• "I would like to suggest that you consider writing a short book analogous to The Idiot's Guide (or The Dummy's Guide) to Statutory Construction. I'll bet it would be very popular among lawyers."

[To receive free semimonthly updates by e-mail--approximately the 15th and 30th of each month--please e-mail me at statconzone@yahoo.com.]

SUMMARY OF OPINIONS ISSUED MAY 1-15, 2003

QUOTATIONS OF THE WEEK:

“It has to be admitted that a common law country may take a blinkered course, and refer only to books on statutory interpretation designed for that country. This is particularly true of the United States . . .”

“Americans distinguish interpreting their constitution from interpreting other enacted law, with a tendency to develop different rules for the two processes. This is foreign to the common law technique, based on the concept of legislative intention, of ascertaining in the same way the legal meaning of legislation of any kind . . .”

F.A.R. BENNION, UNDERSTANDING COMMON LAW LEGISLATION 1, 177 (2001)


CASE SUMMARIES:

D.C. Circuit

United Church of Christ v. FCC (D.C. Cir. May 9, 2003) (Rogers)

Statutes/regulations construed: Section 399b of the Communications Act, which provides that “No public broadcast station may make its facilities available to any person for the broadcasting of any advertisement.”

Conclusion: The FCC reasonably interpreted § 399b to prohibit only ‘‘broadcast’’ and not other transmissions of advertisements by noncommercial public television stations.

Statutory construction tools:
• Chevron Step One: “For this purpose the court 'must first exhaust the traditional tools of statutory construction,' including legislative history and statutory structure.”
[Hmm…”tools of statutory construction”…why does that term sound vaguely familiar?]
• Deference—Agency interpretation of its own regulations: "The court’s review of the Commission’s interpretation of its own regulations, in turn, is more deferential, giving ‘controlling weight’ to the Commission’s interpretation ‘unless it is plainly erroneous or inconsistent with the regulation.’”
• Legislative reenactment: “The Supreme Court has acknowledged that it has not always spoken in ‘entirely consistent terms’ regarding the effect of reenactment in the absence of affirmative indications of agreement with agency regulations.”


First Circuit

In re Hart (3d Cir. May 8, 2003) (Torruella)

Statutes/regulations construed: The Bankruptcy Code, including a provision regarding a debtor’s ability to avoid the fixing of a judicial lien—section 522(f).

Conclusion: Congress did not intend § 522(f)(2)(C) as an exception to otherwise avoidable liens.

Statutory construction tool: "If Congress intended . . ."/Organization of statute: "Our interpretation provides a logical and coherent reading of Congress' organization of § 522. If Congress intended to except mortgage foreclosure judgments, then § 522(f)(1) was the natural, and trouble-free, place to insert such an exception. Congress' chosen language supports our interpretation. Congress uses the word 'lien' throughout § 522(f) and only uses 'judgment' in § 522(f)(2)(C). As the Appellate Panel pointed out, Congress would have used the word 'lien' if it intended to exclude deficiency judgment liens."

DRAFTING TIP—BE CAREFUL WHEN YOU USE THE TERM “THIS PARAGRAPH”: “Because Congress failed to designate the meaning of ‘this paragraph,’ we determine its meaning by ‘examin[ing] the statute as a whole, giving due weight to design, structure, and purpose as well as to aggregate language.’”

Obscure word of the week award: “[T]he legislative history of the amendments to § 522(f) is unreliable, making the intention of the drafters tenebrous.” “Tenebrous” means dark, murky. In the last 15 years, the word "tenebrous" has appeared in 40 federal court of appeals opinions. Of those 40 opinions, 36 (i.e. 90%) were from the 1st Circuit.


Second Circuit

Cervantes-Ascencio v. Ashcroft (2d Cir. May 1, 2003) (per curiam)

Statutes/regulations construed: Provisions of the Immigration and Nationality Act which impose bars on an alien’s re-admission depending on the term or duration of his or her unlawful presence in the United States before commencement of removal proceedings. One subpart applies to “short term” aliens--those whose unlawful presence in the United States amounts to less than one year. A second subpart applies to “long term” aliens--those whose unlawful presence in the United States amounts to one year or more.

Conclusion: The court declined Petitioner’s request to read an exception in the subpart applicable to “short term” aliens into the subpart applicable to “long term” aliens.

Statutory construction tools:
• Omissions: “Congress expressly relieved certain ‘short term’ aliens of the re-admission bar. It omitted any such exception from Subpart II. This omission is not the product of inadvertence or oversight . . . We presume that omissions of the sort at issue here are intentional, and we are without authority, absent substantial evidence to the contrary, to ‘add terms or provisions where Congress has omitted them.’” (citations omitted).
• Deference—agency memo: “Even if there were some facial ambiguity in these provisions, however, the INS has similarly interpreted Subparts I and II in an agency-wide implementation memo, which was made a part of the record on appeal and considered by the IJ in rendering its decision. See INS Memorandum to Staff (March 1997). We find its interpretation reasonable and, affording it the deference warranted under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984), we reject this claim.”


Third Circuit

Secretary of Labor v. Rothermel (3d Cir. May 2, 2003) (Nygaard)

Statutes/regulations construed: The Federal Mine Safety and Health Act of 1977.

Conclusion: The Mine Safety and Health Administration had authority to conduct bi-monthly respirable dust samplings at Appellants’ coal mine.

Statutory construction tool: Congressional intent—narrow reading: “The narrow reading urged by the company is inconsistent with the declared intent of Congress to promote safety in the mines and encourage miner participation in that effort.”

Judicial Smackdown: After summarizing one of Appellants’ arguments, the court stated “This is semantic nonsense. Appellants’ argument goes nowhere for several reasons.”


Fourth Circuit

Scott v. United States (4th Cir. May 1, 2003) (King)

Statutes/regulations construed: Internal Revenue Code provisions regarding income of estates and trusts.

Conclusion: Investment-advice fees incurred by the Trust do not qualify for the exception created by 26 U.S.C. § 67(e) but are subject to the 2% floor established by 26 U.S.C. § 67(a).

Statutory construction tools:
• Ambiguity: “When interpreting a statute, the goal is always to ascertain and implement the intent of Congress. The first step of this process is to determine whether the statutory language has a plain and unambiguous meaning. If the statute is unambiguous and if the statutory scheme is coherent and consistent, our inquiry ends there.” (citations omitted).
• Ambiguity: “[C]ircuit splits and differences in statutory interpretation do not establish ambiguity.”
• Ambiguity: “The Supreme Court has explained that ‘[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.’”


CALLED, BUT NOT CHOSEN:

Disabled American Veterans v. Secretary of Veterans Affairs (Fed. Cir. May 1, 2003) (a Department of Veterans Affairs regulation--which allowed the agency board to obtain or clarify evidence, cure a procedural defect, or perform any other action essential for a proper appellate decision without having to remand the appeal to the regional office for initial consideration and without having to obtain the appellant’s waiver--was contrary to the statutory requirement that all questions in a matter which is subject to decision by the Secretary “shall be subject to one review on appeal to the Secretary.”)

Brown v. United States (D.C. Cir. May 2, 2003) (the Treasury Department’s “weighted national average” method for calculating locality pay increases for retired Uniformed Division Secret Service agents who receive annuities under the District of Columbia Police and Firefighters Retirement and Disability Act was entitled to Skidmore deference)

United States v. Dixon (3d Cir. May 2, 2003) (rejecting the argument that under the Immigration and Nationality Act, 8 U.S.C. § 1326, it is significant that an alien is incarcerated when “found” in the United States, and holding that the statute “requires only that an alien return illegally to the United States, and be subsequently discovered here.”)

Morgan v. Secretary of Veterans Affairs (Fed. Cir. May 6, 2003) (construing amended version of statute giving Federal Circuit jurisdiction over decisions of the U.S. Court of Appeals for Veterans Claims, and concluding that “our jurisdictional statute means at least this much: in a case such as this, in which the decision below regarding a governing rule of law would have been altered by adopting the position being urged, this court has jurisdiction to entertain the matter, even though the issue underlying the stated position was not ‘relied on’ by the Veterans Court. To that extent at least the matter is ‘case’ jurisdiction.”)

Carpenter v. Secretary of Veterans Affairs (Fed. Cir. May 7, 2003) (Federal Circuit did not have jurisdiction to consider claim that the U.S. Court of Appeals for Veterans Claims erred in determining that an attorney’s contingency fee agreement was “excessive and unreasonable” and that he was not entitled to retain an award of attorney fees pursuant to the Equal Access to Justice Act for the “same work” compensated under his fee agreement)

Kilpatrick v. Secretary of Veterans Affairs (Fed. Cir. May 7, 2003) (concluding that persons disabled by VA medical or surgical treatment are eligible for specially adapted housing benefits)

In re Pharmatrack, Inc. Privacy Litigation (1st Cir. May 9, 2003) (holding that, under the Electronic Communications Privacy Act of 1986, the burden of showing that a party consented to an interception is “on the party seeking the benefit of the exception” and that “[s]eparate, but simultaneous and identical, communications satisfy even the strictest real-time requirement” for determining whether there was an “interception” within the meaning of the Act)

Saint Fort v. Ashcroft (1st Cir. May 9, 2003) (federal courts possess 28 U.S.C. § 2241 habeas jurisdiction over claims that arise under the implementing legislation and regulations of the United Nations Convention Against Torture, and that are asserted by aliens who are statutorily ineligible for judicial review of their final orders of removal because they have been convicted of aggravated felonies)

Obado v. State of New Jersey (3d Cir. May 9, 2003) (“The payment of restitution or a fine, absent more, is not the sort of ‘significant restraint on Liberty’ contemplated in the ‘custody’ requirement of the federal habeas corpus statutes.”)

Lee v. United States (Fed. Cir. May 12, 2003) (Even though Congress intended revocation and monetary penalties to be alternative sanctions under a statute regarding customs brokers, agency regulations that allow the revocation of a broker's license for failure to make on-time payment of a penalty were properly within the agency's authority under that statute. Appellant’s license was revoked for “failing to pay penalties in a timely manner, not as a second sanction for the violations for which the penalties were assessed.”)

White v. Department of Justice (Fed. Cir. May 12, 2003) (statute barring persons convicted of a “misdemeanor crime of domestic violence” from possessing a firearm “requires only that the use or attempted use of physical force (or the threatened use of a deadly weapon) be an element of the predicate misdemeanor offense, and the existence of a domestic relationship need not be an element. Rather, it may be proven independently during the personnel action litigation.”)

United States v. Mitchell (2d Cir. May 12, 2003) (under a federal criminal statute that applies to firearms “purchased or otherwise obtained” out of an individual’s state, firearms obtained by employing out-of-state agents to purchase firearms were “otherwise obtained” within the meaning of the statute)

James v. Santella (Fed. Cir. May 13, 2003) (under a statute authorizing attorney fees in Merit Systems Protection Board cases if the employee was a prevailing party and payment is “warranted in the interest of justice,” a finding that an employee is “substantially innocent” of charges made by the Office of Special Counsel is sufficient for an award of attorney fees )

National Association of Veterans’ Advocates v. Secretary of Veterans Affairs (Fed. Cir. May 14, 2003) (concluding that a Department of Veterans Affairs regulation, which provides that evidence other than the veteran’s service records may be sufficient to establish the occurrence of a stressor in claims for service connection of post-traumatic stress disorder resulting from personal assault, was consistent with VA statutes)

Gerber v. Kayne (2d Cir. May 15, 2003) (under the Private Securities Litigation Reform Act of 1995--which indicates that its provisions relating to settlement “shall not affect or apply to any private action [brought under the Securities and Exchange Act of 1934] commenced before and pending” on December 22, 1995--the court concluded that the “action” was commenced when the complaint was filed and that amending the complaint, even to add additional plaintiffs, did not create a new “action”)


LAW REVIEW ARTICLE RECOMMENDATIONS:

David Fontana, Refined Comparativism in Constitutional Law, 49 UCLA L. REV. 539 (2001)

ENGLISH COMMON-LAW TRIVIA QUESTION:
[Name of first person to answer correctly will be posted on this weblog. Please e-mail answers to statconzone@yahoo.com.]

No new questions because there is an unanswered question from previous weeks:

In the late 18th century, which English trial judge was reversed most often on appeal?

Congratulations to Robert Parnacott from Sedgwick County, Kansas, who provided the correct answer: William Blackstone. Yep, William Blackstone, probably one of the most influential legal writers of the 18th or 19th centuries, huge influence on American law, subject of innumberable paeans from courts and scholars, was the 9th Circuit of his time.

Professor Stanley Katz wrote in the introduction to volume 1 of the paperback version of the Commentaries published by the University of Chicago: "He had the reputation of being a notably poor trial judge, more frequently reversed on appeal than any of his peers."


READER COMMENTS:

A reader e-mailed me this "Inane Statute of the Day." Feel free to submit examples of your own.

Another reader submitted this example: § 26.02(e) of the Texas Business and Commerce Code requires the creditor in a loan agreement to give the following notice to the debtor or obligor: "This written loan agreement represents the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. . .There are no unwritten oral agreements between the parties."

Excuse me, what is an “unwritten oral agreement”? As contrasted with what? A written oral agreement?